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Adams v. Adams

October 29, 2008

ELISABETH ADAMS, N/K/A ELISABETH SCOTT, PLAINTIFF-RESPONDENT,
v.
GARY ADAMS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1156-01S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 12, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant Gary Adams appeals from the September 7, 2007 order denying his motion to modify/reduce alimony payable to plaintiff, Elizabeth Scott (formerly Adams), and also denying his request to reduce the amount of life insurance he was obliged to maintain on plaintiff's behalf, in accordance with the parties' property settlement agreement (PSA). We affirm.

A final judgment of divorce (FJOD) was entered on June 11, 2002. Incorporated into the FJOD was a PSA dated March 19, 2002. Of significance to this appeal are the PSA provisions related to alimony. Under the agreement, "[Defendant] shall pay to [plaintiff] for her support and maintenance permanent alimony in the amount [of] $275.00 per week to be paid as follows: $596.00 by the fifteenth of each month; $596.00 by the 30th of each month." The PSA also provides that termination of alimony was conditioned upon plaintiff's death; remarriage; or cohabitation, in accordance with Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). Finally, the agreement states that repudiation or modification of the PSA could only occur by mutual consent, in writing, duly executed by the parties and witnessed, or as a result of defendant's death.

At the time of the divorce, defendant was a twenty-four-year veteran of the Morris Township Police Department earning approximately $95,000 annually. Defendant retired from the police force effective August 1, 2007, allegedly to avoid forfeiture of his entire pension if charges that had been lodged against him were proven. At the time of his retirement, defendant was earning $120,321, inclusive of overtime earnings. Following his retirement, defendant secured new employment as Director of Security at Maple Gardens in Irvington earning $65,000 annually.

Also on August 1, 2007, defendant filed a motion in the Family Part seeking a reduction in his alimony obligation commensurate with his then existing circumstances, a reduction in his life insurance obligation, and counsel fees. Plaintiff filed a cross-motion requesting that the court (1) deny any modification of support, (2) compel defendant to maintain a $175,000 life insurance policy on her behalf, and (3) direct that all alimony payments be paid to her through the probation department.

The court issued a tentative decision denying defendant's motion. Thereafter, the court conducted oral argument and then formally denied the motion. The court incorporated the findings that were set forth in its tentative decision into its order. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

TO DETERMINE WHETHER THERE HAS BEEN A CHANGE IN CIRCUMSTANCES THAT WARRANTS A REDUCTION IN SUPPORT, A COMPARISON MUST BE MADE BETWEEN THE PARTIES' FINANCIAL CIRCUMSTANCES AT THE TIME THE MOTION FOR RELIEF IS MADE WITH THE CIRCUMSTANCES WHICH FORMED THE BASIS FOR THE LAST ORDER FIXING SUPPORT OBLIGATIONS. ONCE THE MOVANT ESTABLISHES A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES, THE JUDGE MUST EXAMINE THE PARTIES' FINANCIAL SITUATION AND, IF WARRANTED, CONDUCT A HEARING TO RESOLVE DISPUTED MATERIAL FACTS.

POINT II

THE FACTORS RELEVANT TO THE REASONABLENESS AND RELATIVE ADVANTAGES OF A CAREER CHANGE OR EARLY RETIREMENT INCLUDE: THE REASONS FOR THE CAREER CHANGE (BOTH THE REASONS FOR LEAVING PRIOR EMPLOYMENT AND THE REASONS FOR SELECTING THE NEW JOB); DISPARITY BETWEEN PRIOR AND PRESENT EARNINGS; EFFORTS TO FIND WORK AT COMPARABLE PAY; THE EXTENT TO WHICH THE NEW CAREER DRAWS OR BUILDS UPON EDUCATION, SKILLS AND EXPERIENCE; THE AVAILABILITY OF WORK; THE EXTENT TO WHICH THE NEW CAREER OFFERS ...


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